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BEFORE SIGNING A LEASE

BEFORE SIGNING A LEASE

Tenants often take the signing of a lease agreement lightly and don’t read carefully through the terms and conditions. A proper lease agreement will ensure that both parties’ rights are protected. Landlords must ensure that they include all the necessary information in a lease agreement, while tenants must make sure that all the points discussed with the landlord are included in the lease, instead of just assuming that they are.

Enquire about costs and duration

The monthly rental cost and duration of the lease (including specific dates) must clearly be stated in the lease agreement to avoid any confusion regarding this matter. The lease agreement should also clearly indicate how and when any increases in rent will take place. If the landlord doesn’t provide you with this information, ask him/her to give it to you in writing so you can keep it on record.

The lease should also clearly explain any deposits (e.g. the rental deposit) that have to be paid, as well as the terms and conditions regarding the refund of deposits. All other variable usage expenses (like water or electricity) that the tenant will have to pay should also be clearly stated.

Some rental properties include utilities within the monthly rental cost, while others don’t. Some properties might offer on-site gym memberships, for example, which could save you money. Before you sign the lease to a property, ask your landlord what is included in the rental rate.

Get information regarding changes to the property

Once the landlord has agreed to rent out his property to you, make sure that you document any pre-existing damages to the property and its amenities before you sign the lease. Ask whether these damages can be fixed at the landlord’s expense.

Both the landlord and the tenant are responsible for the maintenance of the property. The responsibilities of both parties should be clearly stated in the lease agreement. The lease agreement should also indicate how the tenant must report any problems that require repair.

Make sure which amendments can be made to the property. Rather know the rules and stick to them, instead of making an alteration and then finding out afterwards that your landlord is unhappy with it. Just imagine your landlord’s disgust after finding out that you’ve repainted his freshly white-painted walls red!

Conclusion

Tenants should be sure to understand the contents contained in the lease agreement and that they understand all the clauses, terms and conditions to avoid any surprises later. While renting a property isn’t as much of a financial commitment as buying a home is, tenants should remember that a lease is nevertheless a legally binding document, meaning that they should make sure that they agree with everything contained therein before they sign it.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

There is a way to keep the view

There is a way to keep the view

When you purchase a house with a view, you probably think that you are going to enjoy this view every day for the rest of your life. Until you receive a flyer with a picturesque multi-story building guaranteed to block your view. This will definitely result in a few disputes that will leave you wishing you had secured your view.

Right to the view

Just because the property has an unrestricted view, it does not mean that the view is the owner’s. To secure it, a registration of a servitude against the title deeds of the properties in the Deeds Office. This includes the natural growth of trees or plants that will block the view over time.

The registered servitude

The registration of the servitude must be made clear where the intentions of the servitude are established and made clear. This is so that when an issue regarding property views reaches the court, the court would need not be concerned about ambiguity and surrounding circumstances.

Court’s considerations

Before reaching a decision, the court may be mindful of considerations when the servitude is interpreted. The result will try, as far as possible, to alleviate burdens on the servient property owner. Emphasis is placed on views and the purpose of the servitude as to provide unobstructed views as they existed at the time of the creation of the servitude.

A new property owner may have to consider the type of building they are wishing to erect so it does not impose on any restrictions in terms of an agreement made by the “owner” of the view.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHEN CAN THE MUNICIPALITY DISCONNECT MY WATER AND ELECTRICITY?

WHEN CAN THE MUNICIPALITY DISCONNECT MY WATER AND ELECTRICITY?

The municipality is the place where most, if not all, services are monitored for their availability to a property, and it is the very place that may cut off the supply of said services. Their authority does, however, come with the responsibility of remaining within the legal boundaries of managing the supply of services to properties. This article will explore the legalities of disconnecting water or electricity.

Accounts in arrears

If one of your municipal services is in arrears, the municipality is well within their rights to disconnect whatever service when there are undisputed arrears owed to any other service in connection with the related property. Before any disconnection takes place, there is a procedure for the municipality to follow.

Notices

The municipality is legally obligated to give a notice to the person responsible for the account. A minimum of 14 days written notice of termination is required for water and electricity accounts in arrears and if the notice period is shorter than 14 days, or not supplied, the disconnection is illegal. The 14-day notice gives the responsible party an opportunity to present any disputes or queries they may have regarding the account or allow them to repay the arrears.

The query period

Once a query relating to the account has been put in, the municipality may not disconnect services provided that the amount being queried is equal to the amount in arrears. In the case where the amount is less that the amount in arrears, the service may be disconnected for the undisputed amount owing.

Payment of arrears

When a query has been logged, it can only be valid for so long provided that the monthly bill or any other related payments are being made to the respective account. If the responsible person does not make any form of payment, the service may be disconnected even if a logged query exists with the municipality.

State where the payment should go

If there is an account dispute and the responsible person makes a payment to the municipality, the municipality may choose to allocate that money to any account they wish to do so. This means the account in need of the payment may not have the payment made into it. To curb this, the responsible person must notify the municipality, in writing, of the payments being made as well as which account they should be allocated to. This must be done before payment is made.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

UNLAWFULLY EVICTED? HERE’S A PIECE OF PIE

UNLAWFULLY EVICTED? HERE’S A PIECE OF PIE

Unless the sheriff of the court has evicted you, you should remain right where you are. If anyone else carries out an eviction, it constitutes as unlawful according to the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) Act.

Regarding the eviction process, the PIE Act stipulates this:

  • Certain procedures must be followed
  • Notice of the intention of getting a court order must be given to the tenant
  • The landowner or landlord must apply to the court to have a written notice served on the tenant
  • The notice must be served at least 14 days before the hearing

The Rental Housing Tribunal (RHT) works alongside the Rental Housing Act, fostering the relationship between landlords and tenants to be one of fairness in terms of lease agreements and any unlawful evictions and unlawful notices to vacate. From the moment the lease agreement terms have been breached, for example, the tenant fails to make rent payments, the landlord may cancel the agreement and the tenant then becomes an illegal occupier.

The PIE Act states that no one may be without property except in terms of law of general application.  Arbitrary deprivation of property from any person is unlawful. Additionally:

  • no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and it should be recognised that the needs of those groups should be considered.

The notice does not guarantee that the unlawful tenant will leave the premises as the court can only grant eviction if it is just and equitable. The owner must also have reasonable grounds for eviction and alternative accommodation available to the tenant.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

CAN MY PROPERTY BE USED FOR AIRBNB?

CAN MY PROPERTY BE USED FOR AIRBNB?

When deciding whether to become an Airbnb host, it’s important for you to understand how the laws work in your city.

According to Brett Herron, the mayoral committee member for transport and urban development at the City of Cape Town, different holiday accommodation land use types, such as B&Bs and guest houses, are regulated by the City’s zoning scheme, called the Development Management Scheme.

If referring to Cape Town, for instance, the city has a Guest Accommodation Policy that sets out the guidelines that have to be considered when applications are made to obtain the necessary planning permissions. According to the Policy, if you wanted to provide a self-catering, flexible accommodation option in line with current trends for transient guests, visitors and tourists, then these are the guidelines that should be followed:

Purpose

  • A building or group of buildings consisting of separate accommodation units rented for residential purposes, each incorporating a kitchenette / full kitchen, but may also include an option of meals being provided communally to guests.
  • May include communal areas for the exclusive use by lodgers / transient guests.

Scale

  • Form and scale of development determined by development parameters of particular zone (i.e. floor space, building lines, height) and the site context.
  • No general restriction on number of units, but must be locally appropriate in context of the building/site characteristics and surrounding area.
  • Council may determine / restrict the number of units per development in cases and lay down conditions necessary to mitigate the impact thereof.

Location

  • Not supported on a single residential zoned property, subject site must have suitable general residential, mixed use or commercial zoning.
  • Locational criteria that should be considered, include:
  • proximity to public transport routes, commercial centres and tourist activities.
  • character of the surrounding area;
  • mixed use or commercial locations (including areas designated for high density development) are encouraged.

Conclusion

In many cities, you must register, get a permit, or obtain a licence before you can list your property or accept guests. Certain types of short-term bookings may be prohibited altogether. Local municipalities may also vary greatly in how they enforce these laws. However, it is not impossible to list your property on Airbnb, you just have to find out from the local municipality if you have the correct permissions and if the property has the correct zoning.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference

Guest Accommodation Policy, the City of Cape Town, Department of Planning & Building Development Management.

“Regulating Airbnb in Cape Town”, Jan Vermeulen, MyBroadband. https://mybroadband.co.za/news/government/210884-regulating-airbnb-in-cape-town.html

WHAT DOES THE DEEDS OFFICE DO?

WHAT DOES THE DEEDS OFFICE DO?

A2The Deeds Office is responsible for the registration, management and maintenance of the property registry of South Africa. If you are planning on buying a house, it can be useful knowing about the Deeds Office. However, you would use the services of a conveyancer when buying or selling a house. Your estate agent should be able to recommend a conveyancing attorney to register your home loan and transfer a property into your name.

What is conveyancing?

Conveyancing is the legal term for the process whereby a person, company, close corporation or trust becomes the registered and legal owner of immovable property and ensures that this ownership cannot be challenged. It also covers the process of the registration of mortgages.

Steps taken by the conveyancer:

  1. The conveyancer lodges your title deed and other documents in the Deeds Office for registration. These documents will be individually captured on the system. If there is a bond, the conveyancer dealing with the bond will lodge the bond documents with the Deeds Office at the same time as the transfer documents. The transfer, bond and cancellation documents must be lodged in the Deeds Office at the same time to ensure simultaneous registration. If different conveyancers are dealing with registering the purchaser’s bond and cancelling the seller’s bond, then they will need to collaborate.
  2. The Deeds Office examiners go through the documentation that has been submitted, and make sure that it complies with the relevant laws and legislations.
  3. The examiners then inform the conveyancer that the deeds are ready to be registered.
  4. Registration takes place with the conveyancer and Registrar of Deeds present. The transfer of the property is then registered in the purchaser’s name. If there is a bond, it is registered at the same time.
  5. Upon registration, the purchaser becomes the lawful owner of the property. The title deed that reflects this ownership is given to the conveyancer by the deeds office after the registration. Unless a bond has been registered as well, in which case the title deed is given to the bond holder.

The time taken to register a property at the Deeds Office depends on various factors and a number of parties. On average, registering a property transfer takes six to eight weeks, although unforeseen difficulties can cause the period to be extended.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RENOVATING YOUR HOUSE

RENOVATING YOUR HOUSE

a1_a_2Gerald and Francis have been living in their dream home for the past 10 years.  In the last few months they noticed that the bathroom and kitchen are starting to look a bit dated and they would love some ekstra space for the children.

With great excitement they decided to update the bathroom and kitchen and close the stoep area to be used as a family room.

They were very surprised when friends reminded them that they should submit building plans for the stoep before the building work commence.  Surely building plans are not necessary, after all, the foundation, as well as two walls, are already in place?

It is important to remember that there are both national regulations, as well as municipality by laws to be taken into consideration.

The City of Cape Town for example require approved building plans for any structure, regardless if it is of a temporary or permanent nature, including alterations or extensions to an existing structure, except for buildings which is less than 5m2, a wire fence or open-side fabric shelter for a car, boat or caravan.  The plans must be drawn by an architect, technologist or draughtsperson who is registered with the South African Council for the Architectural Profession.

Furthermore, the City of Cape Town require building work to commence within 1 year from approval of the building plans and upon completion of the building work, a request should be submitted for the issuing of an occupancy certificate.

Before any building work commence, it is very important to contact your local authority and to establish what their requirements are regarding building plans, the submission thereof, as well as among other things their requirements regarding room dimensions, heights, natural lighting and ventilation, as well as the time frame in which building work should be completed, the inspections to be done and the occupation certificate to be issued.  Also, should your property be located in a Heritage area or be defined as a Heritage building, different guidelines will apply to keep in line with the architectural style and history of the area.

It may seem inviting to proceed with building work without approved plans, who will find out?  A building inspector can order you to stop with any further building until the plans are approved.  Failure to adhere thereto, may lead to a fine or even a court order to demolish the unapproved structure.

When planning an extension to an existing house, keep in mind that your property’s Title Deed may also have restrictive conditions limiting the distance to the boundaries of the erf where you are allowed to build, for example “No building or structure or any portion thereof except boundary walls and fences, shall … be erected nearer than 6,30 metres to the street line …, nor within 3,15 metres of the rear or 1,57 metres of the lateral boundary …”

Also, keep in mind, when you sell your property in future, the purchasers are likely to request copies of the approved building plans as a condition of the sale.  Should the plans not be up to date, it will be your responsibility to provide updated approved plans.  It is possible that an “illegal” / unapproved structure, which could be the very thing that attracted potential buyers in the first place, have to be demolished for the plans to be approved.  It is never advisable to make any changes to your property without consulting experts in the field as well as your local authority.

Renovating your property can be a very exciting project, ensure that you do your homework and know what is required from you.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)